The Third Circuit case, New Jersey Physicians, Inc. v. President of the United States, was brought by a licensed physician, one of her patients, and a non-profit corporation that "has as a primary purpose the protection and advancement of patient access to affordable, quality healthcare." The plaintiffs challenged the constitutionality of the individual mandate, but they neglected to put anything in their complaint showing how they'd be injured.

Thus, the patient alleged this: "Roe is a patient of Dr. Criscito who pays himself for his care," and Roe "is a citizen of the State of New Jersey who chooses who and how to pay for the medical care he receives from Dr. Criscito and others." The court wrote that Roe failed to provide any details, and failed to show that these allegations amounted to an injury.

In a similar spirit, the doctor alleged this: "Dr. Criscito, in the course of his individual practice of medicine, treats patients," and "[s]ome of those patients pay Dr. Criscito for his care and do not rely on a third-party payor to do so on their behalf." The court wrote that these allegations, too, are too bare and fail to show an injury.

As to the non-profit and its claim for associational standing, the court ruled that it failed to show that any of its members would be harmed by the law.

The court didn't reach the merits, to be sure. And the case was by any measure (strangely) weak on standing: the plaintiffs simply failed to allege any concrete, particularized, and imminent harms. (Their allegations read like generalized grievances, or even like they were going for an advisory opinion.) But the case now stands as the second significant defeat for ACA opponents in the circuit courts in just over a month.

Cases to watch now are Virginia v. Sebelius and Liberty University v. Geithner outstanding in the Fourth Circuit, and Florida v. HHS oustanding in the Eleventh Circuit. The courts have heard oral arguments in these cases; we're just waiting for opinions.

Judge James S. Gwin (D.D.C.) ruled this week in Doe v. Rumsfeld that a U.S. citizen's Bivens suit against former Secretary of Defense Donald Rumsfeld can move forward beyond the pleadings. In so ruling, Judge Gwin also flatly rejected some of the kinds of claims we've grown accustomed to by the government in cases arising out of its anti-terrorism programs--most especially a separation-of-powers claim that the courts have no business poking their noses in foreign affairs and national security.

The ruling comes on Rumsfeld's motion to dismiss the plaintiff's complaint. The plaintiff, a U.S. citizen and civilian employee once deployed with a Marine intelligence unit in Iraq, alleged that Rumsfeld authorized his torture at overseas prisons operated by the United States and denied him fair process to challenge his designation and detention. He brought a Bivens claim for violations of substantive due process, procedural due process, and access to the courts and sought monetary damages.

Rumsfeld argued that the plaintiff's claim amounted to an unwarranted expansion of Bivens--that Bivens did not contemplate this kind of monetary damages claim, and that special factors counseled against recognizing the plaintiff's Bivens claim here--in particular, the separation-of-powers argument that this case raised foreign affairs, national security, and war-time issues uniquely within the bailiwick of the political branches, and that the courts have no expertise in these areas.

The court disagreed. Judge Gwin cited the Supreme Court's relatively recent and not-so-recent forays into foreign affairs, national security, and war-time issues--cases in which the government made arguments very similar to those Rumsfeld made here--and ruled that courts do, in fact, sometimes get involved in these issues. Moreover, Judge Gwin noted that the plaintiff was detained on his way out of Iraq, after he left the field of battle, when he could no longer offer low-level aid to insurgents (as the government alleged). Judge Gwin also rejected Rusmfeld's related "real world consequences" of allowing a Bivens remedy here, that the threat of liability would impede military decisionmaking; that proceeding with the case would involve sensitive information, distracting discovery, and testimony by soldiers that would disrupt the military's efforts; and that the action would "embroil the judiciary in war-related decisions" that are complicated to litigate.

Judge Gwin also rejected Rumsfeld's qualified immunity defense. Judge Gwin wrote that the plaintiff pleaded sufficient facts to show that Rumsfeld approved of policies that led to his torture, in violation of substantive due process. (He was careful to write that this was not a respondeat superior claim in violation of Ashcroft v. Iqbal. Instead, it was a direct claim for authorizing torture.) But Judge Gwin wrote that the plaintiff did not plead sufficient facts to show that Rumsfeld directed his shoddy process in violation of procedural due process and the right of access to the judiciary. He thus dismissed these two claims.

The ruling means that the plaintiff jumped one of his most significant hurdles--getting past the pleadings on his torture claim against Rumsfeld--especially after the Supreme Court clarified the high pleading standard in Iqbal and especially given a very recent ruling by the D.C. Circuit in a very similar case. Just over a month ago, the D.C. Circuit dismissed a Bivens claim against Rumsfeld for tortureby an alien detained overseas. Key to the D.C. Circuit's ruling in Arkan v. Rumsfeld was that it wasn't clearly established at the time that the Fifth and Eighth Amendments applied to aliens detained abroad (not our case). But maybe just as key--and more relevant to Doe--the court ruled that prudential considerations--that cases like this against military officials would disrupt the war effort, just like Rumsfeld's argument in Doe--counselled against extending a Bivens remedy.

If the D.C. Circuit applies this same prudential considerations analysis to Doe, this case won't go far.

In addition to the DOJ challenge to Alabama's immigration law HB 56, which we discussed here, and last month's lawsuit filed by the Southern Poverty Law Center,discussed here, a group of clergy from Alabama have also filed a complaint alleging the immigration law is unconstitutional.

In their complaint, clergy members from the Episcopal, Methodist, and Roman Catholic churches allege that HB56 "runs counter to the Christian spirit of compassion. The law is unconstitutional and a direct affront to the recognized and accepted Word of God. Because Alabama citizens are entitled to freely exercise their religion to show mercy to all people regardless of their immigration status."

The gravamen of the complaint in Parsley v. Bentley is the conflict between Christian duties of hospitality and the statute's mandate to be "inhospitable" to immigrants.

For example, the complaint alleges that if enforced, "Alabama's Anti-Immigration Law" will "make it a crime to follow God's command to be Good Samaritans" citing Luke 10:25-37 and "will place Alabama church members in the untenable position of verifying individuals' immigration documentation before being able to follow God's Word to 'love thy neighbor as thyself'" citing Matthew 22:39.

More specifically, the complaint raises particular instances that might result in the prosecution of clergy or church members. For example, a clergy member might be prosecuted for not verifying the immigration status of persons before performing a marriage or a baptism. A church member might be prosecuted for transporting "a fellow congregant" or providing "shelter to a person needing help" without verifying immigration status.

While the complaint has six causes of action, including a contracts clause claim, but without a supremacy clause claim, it is obviously that the First Amendment Free Exercise of Religion claim is central and most unique. While some allegations of the complaint could extend to any number of laws, the allegations regarding central church activities might be viewed favorably by the United States district judge.

A Vietnamese appeals court earlier this week upheld the conviction and seven-year sentence of attorney and scholar Cu Huy Ha Vu for propagandizing against the Vietnamese government. Human Rights Watch has a report and case materials here.

According to the indictment, Vu called for the elimination of the leading role of the Vietnamese Communist Party, the removal of Article 4 of the Constitution (discussed below), and a multi-party, plural political system. Here's a sample of what the government claimed Vu said:

In short, to maintain the leadership of the Vietnamese Communist Party over the country is nothing other than serving the illegal interests of a small group inside the Vietnamese Communist Party, which goes against the interests of the majority of the people, including millions of Communist Party members, and therefore should not be prolonged any further. By the way, I am once again beckoning the leaders of the Vietnamese Communist Party to promptly apply a multi-party system in Vietnam, otherwise, national integration and national conciliation will become national deception, with its foreseeable negative consequences.

The Communist Party of Vietnam, the vanguard of the Vietnamese working class, the faithful representative of the rights and interests of the working class, the toiling people, and the whole nation, acting upon the Marxist-Leninist doctrine and Ho Chi Minh's thought, is the force leading the State and society.

All Party organisations operate within the framework of the Constitution and the law.

Vietnam, of course, isn't alone in its one-party approach. But it's in dwindling company--just a handful of constitutions today still codify one-party rule (even if more have de facto one-party rule). Here's a sample, from Cuba:

The Communist Party of Cuba, a follower of Marti's ideas and of Marxism-Leninism, and the organized vanguard of the Cuban nation, is the highest leading force of society and of the state, which organizes and guides the common effort toward the goals of the construction of socialism and the progress toward a communist society.

The rights of the multi-ethnic people to be masters of the country are exercised and ensured through the functioning of the political system with the Lao People's Revolutionary Party as its leading nucleus.

Article 50: In the Socialist Republic of Vietnam human rights in the political, civic, economic, cultural and social fields are respected. They are embodied in the citizen's rights and are determined by the Constitution and the law.

Article 51: The State guarantees the rights of the citizen; the citizen must fulfill his duties to the State and society.

Article 53: The citizen has the right to participate in the administration of the State and management of society, the dicussion of problems of the country and the region; he can send petitions to State organs and vote in referendums organised by the State.

Article 70: The citizen shall enjoy freedom of opinion and speech, freedom of the press, the right to be informed, and the right to assemble, form associations and hold demonstrations in accordance with the provisions of the law.

Article 76: The citizen must show loyalty to his motherland. To betray one's motherland is the most serious crime.

Judge Alvin Hellerstein (S.D.N.Y.) ruled from the bench this week that the CIA was not in contempt of court for destroying 92 videotapes depicting torture of two detainees, Abu Zubaydah and Abd Al-Rahim Al-Nashiri. But Judge Hellerstein also ordered the Agency to pay attorneys' fees to the ACLU, which brought the suit and the contempt motion, and asked the Agency to publish its new document-destruction policies (crafted in the wake of this litigation).

The ruling was the latest round in the ACLU's ongoing FOIA litigation to obtain records related to the detention and treatment of prisoners in U.S. custody overseas. The ruling arose out of the CIA's destruction in 2005 of 92 videotapes depicting torture of detainees. But the Agency only revealed that it destroyed the tapes in 2007. The court initially ordered the Agency to produce or identify all records pertaining to the treatment of detainees in its custody--including the 92 videotapes--in September 2004.

The ruling means that neither the CIA nor its officials who destroyed, or authorized the destruction of, the tapes will be held accountable through the courts.

Douglas Kendall (Constitutional Accountability Center) and Geoffrey Stone (Chicago) debated progressive visions of constitutional jurisprudence last month at Brookings. (The link contains video of the event.) The debate continued their pieces in the current issue of the journal Democracy and includes perspectives on both theories of interpretation and the politics of those theories--that is, which theory can best challenge the political right's originalism and capture the confidence of the people. This is a refreshing debate--one in a growing line now that does not center on either the faults or virtues (or both) of originalism, but rather seeks to move the entire frame of the debate over constitutional interpretation.

Stone (and William Marshall (UNC), his co-author on the Democracy pieces) argued where constitutional text is ambiguous, judges should apply the "values, concerns, and purposes" of the document to new problems:

[The Framers'] values, concerns, and purposes, as reflected in the text of the Constitution, must inform and guide the process of constitutional interpretation, but in a principled and realistic manner. They must be considered as the Framers themselves understood them--as a set of general principles and aspirations, rather than as a collection of specific and shortsighted "rules." To be true to the Framers' Constitution, we must strive to implement faithfully the Framers' often farsighted goals in an ever-changing society. That is central to any theory of princpled constitutionalism.

Democracy, at 65. How to do this?

Constitutional interpretation is not a mechanical enterprise. It requires judges to exercise judgment. It calls upon them to consider text, history, precedent, values, changing social, economic, technological, and cultural conditions, and the practical realities of the times. It requires restraint, wisdom, empathy, intelligence, and courage. Above all, it requires recognition of the judiciary's unique strengths and weaknesses, a proper appreciation of the reasons for judicial review, and a respectful understanding of our nation's most fundamental constitutional aspirations and how we hope to achieve them.

Democracy, at 66.

Kendall (and Jim Ryan (UVA), his co-author on the Democracy pieces) argued that Stone and Marshall "fall into the same traps that have gotten progressives into a hole in the first place," including seeing the text as too ambiguous. Seeing the text as ambiguous, they argue, lends itself as much to a conservative reading as to a progressive reading. A better approach is New Textualism:

Constitutional adjudication often requires two steps--determining the meaning of the constitutional provision in question as precisely as possible, and then applying that meaning to the issue at hand. That second step may entail following precedent, or it may require reliance on broader theories of adjudication summarized by Stone and Marhsall, like judicial restraint or political process theory.

What we are saying is that progressives should linger far longer on the first step, even in cases involving the Constitution's most open-ended language, rather than sailing right past this step in the often mistaken belief that a close examination of the Constitution's text and history will offer little of value.

Democracy, at 71.

Whatever else their disagreements, they agree on at least these points: All agree that originalism, any variety, is a bankrupt theory; and they all agree that progressives need their own strong, persuasive theory of constitutional interpretation.

Alabama's HB56, signed into law in June, and being touted as the "nations' toughest immigration law," is the subject of another challenge in federal court. Last month's lawsuit, which we discussed here,Hispanic Interest Coalition of Alabama v. Bentley, had eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause; First amendment claims including speech, assembly, and petition clauses, the Contracts Clause, and Sixth Amendment.

The DOJ complaint, in U.S. v. Alabama, focuses on Supremacy Clause issues, as might be expected. Counts I and II argue that HB56's sections 10, 11(a), 12(a), 13, 16, 17, 18, 27, 28, and 30 violate the Supremacy Clause, and are pre-empted by federal law, respectively. Count III alleges that HB56 section 13 restricts the interstate movement of aliens in a manner that is prohibited by Article One, Section Eight of the Constitution, the Commerce Clause.

Here's a flavor of the DOJ's basic pre-emption argument:

the federal government will be required to divert resources from its own, carefully considered enforcement primary priorities — aliens who pose a threat to national security and public safety — to address the work that Alabama will now create for it — verification of individuals who are caught driving without a license or jaywalking.

The DOJ is seeking a preliminary and permanent injunction of the statute scheduled to become effective September 1.

The Alabama statute is thus now subject to two challenges in federal court. [update: Clergy have also filed a lawsuit, discussed here]

Metzger argues that federalism under President Obama is more complicated than it may appear. Analyzing the federalism features several programs in detail--including federal health care reform, the Dodd-Frank financial reform act, the Recovery Act, and Race to the Top--and the administration's preemption guidelines and practices, Metzger argues that President Obama's federalism has these characteristics:

A more active government, at both federal and state levels. President Obama's federalism does not mean a more robust federal government at the expense of the states; instead, it means enhanced roles for both federal and state governments. Metzger argues that "[s]tates are given significant room to shape their participation in the new federal initiatives, as well as enhanced regulatory authority and expanded resources to do so." But state participation is "in service of progressive policy, not a general devolution of power," and states that elect not to participate face the prospect of a federal government regulating directly (and thus losing their ability to pursue their preferred policies).

The Administrative Sphere is Central to Modern Day Federalism. Metzger argues that administrative agencies, not Congress and the courts, are playing an increasingly important role--indeed, a central role--in shaping federalism. This is a theme that Metzger also explores in her earlier piece, Administrative Law as the New Federalism.

States as Players. Metzger argues that states and state officials have a broad ability to effect policies under the Obama Administration's signature programs--that "structural mechanisms . . . give state officials a direct role in federal administrative decisionmaking and potentially limit agencies' abilities to prevent state involvement."

Subdivided Federalism. Metzger argues that two programs, Race to the Top and the Recovery Act, allow localities to bypass state governments, thus allowing the federal government to effect policies through (more favorably inclined) local governments and dodge (hostile) states.

This is a valuable addition to Metzger's already significant scholarly contributions on federalism. Check it out.

In a Memorandum and Order today, Judge J. Thomas Marten of the United States District of Kansas, enjoined the enforcement of the Kansas defunding of Planned Parenthood statute, Section 107(l) of H.B. 2014, 84th Leg. (Kan. 2011). The judge enjoined the Kansas state defendants from any further enforcement or reliance on athe state statute and directed them to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l), and to provide continuation grant funding to the Planned Parenthood.

The Kansas statute, Section 107(l) of H.B. 2014, which took effect on July 1, 2011, defunds Planned Parenthood by providing that Kansas subgrants of Title X funds are "exclusively prioritized" to public entities, or secondly, to hospitals or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity which is neither a hospital nor a FQHC, it cannot successfully apply to Kansas to receive Title X funds.

Planned Parenthood argued that the statute violated the Supremacy Clause, in that in conflicted with federal law under Title X, and that the statute violated its First Amendment rights. The judge found there was a substantial likelihood of success on both of these claims.

First, however, the judge considered the state's argument that any relief was barred by the Eleventh Amendment. The state defendants argued that the requested relief therefore must include an order for the State to sign a contract with and pay money to Planned Parenthood, thereby violating the State’s sovereign immunity. Rejecting this argument, the court stated that it found "the injunctive relief sought by Planned Parenthood will not violate the Eleventh Amendment, as it seeks an order which would simply preclude the defendants from any decision allocating Title X funding on the basis of the allegedly unconstitutional Section 107(l).”

As to Planned Parenthood's pre-emption claim, the judge noted that there were several cases holding that a state's imposition of additional eligibility requirements under Title X are invalid as creating an unconstitutional conflict. The state statute did not simply render uncertain whether or not Planned Parenthood could receive state funding; it made it impossible for the organization to be funded.

Regarding Planned Parenthood's First Amendment claim, the judge distinguished it from unconstitutional conditions cases such as Rust v. Sullivan. Here, it was not that there were conditions attached to the funding, but that an organization was deemed ineligible based entirely on "participation in unrelated political conduct. This punitive aspect of the statute, arising from the plaintiff’s protected association with abortion related services, renders the statute unconstitutional." Thus, the judge focused on the First Amendment right of association.

Discussed in both of the Planned Parenthood claims was the legislative intent of the statute. Was the intent of the statute directed at Planned Parenthood? The judge soundly rejected the state defendants "suggestion that the statute was simply designed to prioritize funding to entities who have a higher percentage of poor clients" as a post-hoc, “litigation-spawned” attempt to find some alternative, benign rationale for the statute. The judge also considered the statement of the amendment's sponsor, Lance Kinzer, including on the floor of the House and on his facebook page:

Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY2011. The vote was 91-26, a great victory on the first pro-life floor voteof the session.

Similarly, Governor Brownback, who signed the statute into law, was quoted by The Lawrence, Kansas Journal-World as hailing the Kinzer amendment on the grounds that it would “zero out funding of Planned Parenthood.” The judge found these were not isolated statements, but indicative of legislative intent both to "punish" Planned Parenthood in contravention of its free association First Amendment rights and to contradict the direct mandate of the federal law.

Chief Judge Royce C. Lamberth (D.D.C.) on Friday granted a petition to unseal President Richard M. Nixon's grand jury testimony from June 23 and 24, 1975, and associated materials of the Watergate Special Prosecution Force. The documents are currently held under seal by the National Archives and Records Administration.